The requirement of sanction for criminal conspiracy under Section 404/120B and the need for an allegation of facts constituting the offense before the Magistrate takes cognizance.

JUDGMENT

Beachcroft, J. - On the 14th September a Sub-inspector of the Calcutta Police presented a written charge to the Second Presidency Magistrate charging eight persona with offenses under Sections 404 and 404/120B, Indian Penal Code. The complaint was in these terms: "All the accused persons are charged with dishonestly misappropriating in converting to their own use on or about the 28th and 29th August 1920 at Jorabagan gold and silver ornaments, viz., gold leoklaces, gold churies, gold makris, gold mals and silver ret, silver mats, etc., and cash money, etc, totaling to the value of about Rs. 3,000, knowing that such properties were in the possession of deceased Bhairabi Dassi of 72/2, Nimtolla Ghat Street at the time of her decrease and have not time been in the possession of any person legally entitled to such possession. Section 404 Indian Penal Code. All the accused are further charged with the offence of criminal conspiracy on or about the aforesaid time and plane for committing the aforesaid offense u/s 404, Indian Penal Code." The Sub-Inspector, when examined by the Magistrate, stated that he had held an enquiry into the matter under the orders of the Assistant Commissioner of Police. On this the Magistrate passed an order that the papers of the enquiry should be put up the next day. On the following day the Sub-Inspector put in an amended complaint, which was in the game terms as that of the 14th, but the petitioner's name, which was not in the first complaint, was inserted in the place of that of one of the original accused. The Magistrate examined the Sub-Inspector and then passed an order "Perused papers of the enquiry, warrant against the accused, Section 404/120- B, Indian Penal Code." The petitioner surrendered on the 17th September before the warrant was executed. By the 12th October all the accused had appeared in Court and on the 1st November the petitioner obtained the present Rule calling on the Chief Presidency Magistrate to show cause why the proceedings should not be quashed, or, in the alternative, the case should not be transferred to some other Magistrate.

2. The first point taken is, that the sanction required by Section 196(A)(2) not having been given the Court was not competent to take acguizance of the offence u/s 404/120B. The Magistrate in his explanation has stated that the provisions of Section 196(A)(2) were overlooked in issuing process of u/s 123B, that the proceedings under that Section would be dropped, and the case would proceed only u/s 404, Indian Penal Code. In respect of the charge u/s 404/120B therefore, the proceedings must be quashed.

3. It remains, therefore, to consider the matter from the point of view that the proceedings are being held u/s 404 only. In the first place, reference may be made to an apparent error, which, if it is an error, is one of form rather than of substance. The Magistrate's order was "warrant against the accused, Section 404/120B, Penal Code." This would ordinarily be read as meaning that a warrant was to be issued u/s 120B, read with Section 404, for there cannot be an offence u/s 120B, except in conjunction with some other section. And if it was intended to proceed only on the charge of conspiracy to commit the offence u/s 404, the want of sanction would terminate the proceeding. Now the complaint was u/s 404 as well as u/s 404/120B, the Magistrate issued his warrants under both Sections, the bail-bond for the appearance of the petitioner was executed with reference to both Sections and the Magistrate in his explanation has written as if it had been intended that the case should proceed under both sections. It is most probable then that the Magistrate did intend, when he ordered issue of warrants, to proceed under both sections and the matter having been argued before us as if it was being dealt with under both sections, I propose to deal with it on that footing.

4. It is argued for the petitioner, in the first plane, that as the offence u/s 404 is no